Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
This appeal brings before us a second time the great Cleveland gas tank disaster of October 20, 1944. The facts are fully set out in our earlier opinion, 3 Cir., 1948, 166 F.2d 908 and need not be repeated. In the meantime, a companion case has come to the Supreme Court of Pennsylvania. The view of the Pennsylvania law expressed in our earlier decision was confirmed by the state court. Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa. 1, 68 A.2d 517. The legal rights and duties of the parties have thus been settled. The present appeal concerns alleged errors in the second trial, which terminated with a verdict and judgment for the defendants. We proceed to consider the grounds for reversal upon which the plaintiff relies.
I. The Shape of the Tank as an Element of Negligence.
The plaintiff contends that the trial judge erred in refusing to submit to the jury the question of defendants' negligence in designing and building the tank in the shape of a cylinder rather than in the shape of a sphere.
At the time East Ohio, the public utility distributing gas in Cleveland, ordered the tank here involved from the defendants, it had standing on its premises three tanks of spherical design, each of which had a capacity half that of the proposed new tank. The spherical tanks had also been designed and built by the defendants. At East Ohio's request for additional unit capacity, the defendants prepared designs for a spherical as well as a cylindrical tank, and wrote to East Ohio that "As to the relative merits of the two designs we are confident that the toro-segmental bottom tank will be just as satisfactory as the spheres have been and we feel that they should be preferred because of the saving in cost." Despite this statement, the defendants make here the unmeritorious argument that they are not responsible for the design because once having entered into a contract with East Ohio for the construction of a cylindrical tank, they could not have built one in the shape of a sphere. The argument ignores the fact that the terms of the contract followed recommendations made by the defendants; if those recommendations were negligently made, then the defendants are responsible.
The trial judge refused to submit to the jury the question of negligence as to the form of the tank because he thought that the experience acquired in the construction and apparently successful operation of three spherical tanks of half the capacity of the cylindrical container was not sufficient to establish a custom or standard of usage in the industry. He said, "As a matter of law I am charging you you are not concerned or you should not consider whether the spherical tank was safer than the cylindrical tank; * * *"
This was error. We said in our prior opinion that the evidence required submitting to the jury the question of "The Use of a dangerous Cylindrical form * * * instead of the relatively safer Spherical form." 166 F.2d at 916-917. The evidence presented at the first trial on this point was almost identical with that submitted at the second. If that evidence was sufficient in the first trial to require submission to the jury, it presented an issue for jury determination in the second trial as well. It makes no difference that objections by the defendants to the admission of this evidence may or may not have been made upon different theories at the two trials. What does matter is that testimony bearing upon the allegedly defective form was in evidence and that we had already held the question raised by it to be one for the jury.
There seems to be some confusion of thought arising from the fact that no usage reaching the dignity of custom had been established in favor of the spherical shape. No one contends that there was a standard established by custom and usage in the industry; it is clear from undisputed statements of fact that this type of tank-building was new. Precedents on what is or what is not practice of the industry to show observance of due care have nothing to do with our situation in this case and are therefore irrelevant.
The problem was to determine whether the defendants have been negligent in designing, supplying and recommending a tank of cylindrical design. The evidence offered by the plaintiff tended to prove that reasonable persons of the skill which the defendants held themselves out to possess would not have constructed a tank of cylindrical form in this situation. The rest was for the jury.
It is significant here, too, that the Supreme Court of Pennsylvania, in the case mentioned above, involving this very disaster, held that under Ohio law the question of negligence involved in the supplying of the cylindrical tank was for the consideration of the jury. 363 Pa. at 11-13, 68 A.2d at 522-523.
II. Questions Concerning Testimony of James O. Jackson.
The plaintiff called James O. Jackson as a hostile witness. Jackson admitted that he was an officer of the defendant corporation, and under Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., it is quite clear that so to call him was proper.*fn1 Five serious errors occurred in connection with the examination of this witness. (a) The trial judge restricted examination by the plaintiff's counsel to Jackson's activities relating to the corporation. This ruling was erroneous. Jackson said that fabrication was done at the corporation's plant by the corporation, but that outside assembly and erection were done by corporation employees on behalf of the partnership. Jackson himself admitted that for many years it had been the uniform practice for him to sign letters written on the partnership letterhead as manager of the partnership's engineering and purchasing departments. Dozens of such letters were admitted in evidence and Jackson admitted that this practice was known to and unobjected to by the partners. On this record, we think that Jackson was a "managing agent" of the partnership within the meaning of Rule 43(b) and that examination of him as an adverse witness should not have been restricted only to his activities on behalf of the corporation.
(b) Jackson's testimony when called by the plaintiff related to certain patents which he had applied for and which he had assigned to the defendant corporation. In these patents were certain statements about the minimum requirements for the steel which was to be used in gas storage tanks, which the plaintiff correctly contended constituted admissions. Despite the express provision of Rule 43(b) that witnesses in such situations may be cross-examined only upon the subject matter of the examination in chief,*fn2 the trial judge permitted cross-examination by defendants' counsel to range far afield. The transcript indicates that a Pennsylvania decision was cited to the trial judge as a ...